Karnataka High Court
Sri B S Jayaram vs Smt B R Swetha on 7 March, 2025
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2025:KHC:9840
CRP No. 470 of 2023
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 470 OF 2023 (IO)
BETWEEN:
1. SRI B S JAYARAM
S/O SRI B T SANJEEVAIAH
AGED ABOUT 45 YEARS
RESIDING AT BILLANAKOTE VILLAGE
SOMPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT
KARNATAKA 562 111.
...PETITIONER
(BY SRI. RAJESH MAHALE, SENIOR ADVOCATE FOR
SRI. JAYARAJ D S, ADVOCATE)
AND:
1. SMT B R SWETHA
Digitally signed by B
K D/O SRI B A RAJANNA
MAHENDRAKUMAR
Location: HIGH
AGED ABOUT 27 YEARS
COURT OF R/AT BILLANAKOTE VILLAGE
KARNATAKA
SOMPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT
KARNATAKA 562 111.
2. KUM B R SMITHA
D/O SRI B A RAJANNA
AGED ABOUT 25 YEARS
RESIDING AT BILLANAKOTE VILLAGE
SOMPURA HOBLI
NELAMANGALA TALUK-562 111
BENGALURU RURAL DISTRICT, KARNATAKA 562 111.
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NC: 2025:KHC:9840
CRP No. 470 of 2023
3. SRI B R RUDRESH
S/O SRI B A RAJANNA
AGED ABOUT 22 YEARS
R/AT BILLANAKOTE VILLAGE
SOMPUR HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT
KARNATAKA-562 111.
4. SRI B A RAJANNA
S/O LATE SRI APPAYANNA
AGED ABOUT 59 YEARS
R/AT BILLANAKOTE VILLAGE
SOMPUR HOBLI
NELAMANGALA TALUK-562 111.
SRI B T SANJEEVAIH
S/O LATE THIMMEGOWDA
SINCE DEAD REP BY HIS
LR WHO IS ALREADY ON RECORD
AS DEFENDANT NO 3/PEITIONER
...RESPONDENTS
(BY SRI. VIJAYA KUMAR C, ADVOCATE FOR R1;
SRI. P M SIDDAMAPPA, ADVOCATE FOR R2 AND R3;
SRI. B S JEEVAN KUMAR, ADVOCATE FOR R4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 19.07.2023 PASSED ON IA No.
VIII IN OS No. 355/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE, NELAMANGALA, REJECTING THE IA No. VIII FILED
UNDER ORDER 7 RULE 11 (a) AND (d) R/W SECTION 151 OF
CPC, 1908 VIDE ANNEXURE-A AND CONSEQUENTYLY, ALLOW
THE SAID APPLICATION VIDE ANNEXURE-T AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
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NC: 2025:KHC:9840
CRP No. 470 of 2023
ORAL ORDER
The petitioner-defendant No. 3 is before this Court in civil revision, challenging the order dated 19.07.2023 passed by the Trial Court in I.A. No. VIII in O.S. No. 355/2017 dismissing an application filed for rejecting the plaint under Order VII Rule 11 (a) & (d) read with Section 151 of CPC, 1908.
2. Respondent-plaintiffs who are the major daughters and minor son of the defendant No.1 had initiated suit in O.S.No.355/2017 against defendants No. 1, 2 and 3, seeking:
- to declare that the suit schedule properties are the joint family properties and the sale deed dated 16.3.1995 executed by one Shri N.Bylappa in favour of jointly defendants No.1 and 2 over the item No.3 of the suit schedule properties is not binding on the plaintiffs;
- to declare that the release deed dated 24.10.2001 executed by the defendant No.1 in favour of defendant No.2 in relation to 3rd item of the suit schedule property is a concocted document;
- to declare that the registered gift deed dated 24.02.2010 executed by defendant No.2 in favour of defendant No.3 in relation to item No.3 of the suit schedule properties, as null and void;
- for partition and separate possession of their legitimate share in the suit schedule properties.-4-
NC: 2025:KHC:9840 CRP No. 470 of 2023
3. The defendant No.3 entered appearance and filed an application to reject the plaint stating that there is no cause of action to file the suit and that the suit filed is barred by limitation.
4. Sri Rajesh Mahale, learned senior counsel representing the counsel for the petitioner submits that alienation of item No.3 suit schedule property is prior to 20.12.2004, and therefore the alienation of the item No.3 is covered by the proviso to sub-section (1) of Section 6 of the Hindu Succession Act, 1956.
4.1. The learned counsel further argues that items No. 1 and 2 of the suit schedule properties were acquired by the defendant No.1 under a partition effected. The plaint averments discloses that items No.1 and 2 were given by Appayanna to the defendant No.1, and therefore, the properties acquired by the defendant No.1 in relation to item No.1 and 2 of the schedule properties are self acquired properties, and the plaintiffs have no right, claim share in the subject properties during the life time of the dens 4.2. In para 5 of the plaint, the plaintiff has categorically admitted that out of the joint family nucleus, the defendant No.1 purchased the item No.3 property under the registered sale deed dated 15.3.1990. He further argues that plaintiff in para 5 of the plaint clearly -5- NC: 2025:KHC:9840 CRP No. 470 of 2023 averred that item No.3 was purchased out of the joint family nucleus by selling Sy.No.33/1 and house property. He further argues that the plaint averments clearly discloses that item no. 3 properties was jointly purchased in the name of defendant No.1 and father of defendant No.2 and the release of 50% share held by defendant No.1 and thereafter defendant No.1 who was absolute owner to the extent of 50% each share in item No.3 released his share in favour of defendant No.2 by executing the release deed dated 24.10.2001 4.3. Therefore, the plaint averments clearly discloses that the suit schedule properties are the absolute properties of the defendant No.1 and during his life time, the plaintiffs have no right to claim share in the subject properties.
In support, reliance is placed on the following:
i. M/s. Durga Projects and Infrastructure Pvt Ltd. v. Sri S. Rajagopala Reddy and others, ILR 2019 KAR 4739, ii. Smt Lokamani and Others v. Smt. Mahadevamma and Others, 2015 (4) KCCR 3091 (DB), iii. Dyamanna v. Assistant Commissioner/ Land Acquisition Officer, W.P. No. 112567.2017, iv. Raghvendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs, AIR 2019 SC 1430, v. Sadeppa S/o Ningappa Pachapur, (since deceased) by LRs and Others v. Gangavva @ Shantavva and Others, 2022 (1) Kar LR 49 (DB), vi. Smt. Hemalatha v. K.H. Srinivasan and Others, 2023 (1) Kar LJ 484 -6- NC: 2025:KHC:9840 CRP No. 470 of 2023 vii. Elumalai alias Venkatesan and another v. M. Kamala and Others and Etc., AIR 2023 SCC 659, viii. Muridhar and Others v. Shwetha and Others, CRP No. 100136/2022 ix. Narasimhegowda and others v. Smt. Puttalaksmamma and Others, 2023 (4) Kar LJ 712 x. Ameeta Ganesh v. Anjanadevi, in CRP No. 04/2024 : DD 15.07.2024, xi. Makhan Singh (Dead) by LRs v. Kulwant Singh, (2007) 10 SCC 602, xii. Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Ors, (1986) 3 SCC 567 xiii. M. Arumugam v. Ammaniammal and Ors., AIROnline 2020 SC 11
5. In response, the learned counsel for the plaintiffs argues that the plaint averments clearly discloses that the item No.3 property was purchased out of the joint family nucleus and item Nos.1 and 2 properties are the joint family nucleus, and therefore the plaint averments clearly discloses that the plaintiff have got legitimate share in the suit schedule properties. The learned counsels further contended that a rejection of plaint must be made as a whole or not all. Any part rejection of the plaint in relation to certain properties in the suit schedule is impermissible in law.
In support, reliance is placed on the following:
i. Geetha v. Nanjundaswamy and Ors., (2023) 7 SCC 387 ii. John Kennedy and Anr. v. Ranjana and Ors., (2014) 15 SCC 785 iii. Radha Bai v. Ram Narayan and Ors. AIR Online 2019 SC 1521 -7- NC: 2025:KHC:9840 CRP No. 470 of 2023 iv. Jayashree Jayanth v. N Krishnaswamy, in RFA No. 1226/2016 :
DD 22.10.2024
6. Heard the learned counsels and perused the material on record.
7. The issue that arises for consideration is whether the impugned order passed merits interference with at the hands of this Court and the plaint in the subject suit deserves to be rejected under Order 7, Rule 11(a) and (d) of CPC, 1908.
8. The relevant facts necessary for the disposal of this petition, as gathered from the averments in plaint, are recorded as hereunder:
8.1. The plaintiffs are the two major daughters and one minor son of the defendant No. 1-father, who have instituted a suit for partition, and inter alia, for setting aside the sale of certain properties, which came to be acquired by the defendant No. 1- father.
8.2. The defendant-father had been given certain properties - Schedule 1 and Schedule 2 properties by his father, one Shri Ayyanna, at an undisclosed point in time.
Subsequently, the defendant father is contended to have begun residing separately from his father, along with his wife, and is contended to have formed a joint family along with his plaintiff-children.
-8-NC: 2025:KHC:9840 CRP No. 470 of 2023 8.3. Thereafter, the defendant No.1 had acquired a parcel of land, measuring 21 guntas, bearing Sy. No. 33/1 under a registered sale deed dated 15.03.1990. Furthermore, the defendant-father is also said to have purchased a residential house bearing Katha No. 3/78, under registered sale deed dated 25.01.1991; both properties are situated at Billankote village, Sompura Hobli, Nelamangala Taluk. Subsequently, the said properties were conveyed in favour of third parties, vide registered sale deeds dated 20.05.1991 and 20.08.1991, respectively.
8.4. It is the specific contention of the plaintiffs that consideration received against the sale of the said properties by the defendant-father was used to purchase another parcel of land, measuring 5 acres and 35 guntas, situated at Averahlli village, hereinafter referred to as Schedule 3 property. However, the agreement to sale dated 03.02.1991 was executed jointly in favour defendant-father and his friend defendant No. 2. Subsequently, a sale deed dated 06.03.1995 was registered to the same effect. Ultimately, on 24.10.2001 the defendant-father relinquished his share in the Schedule 3 property in favour of defendant No.2, vide released deed dated 24.10.2001.
-9-NC: 2025:KHC:9840 CRP No. 470 of 2023 8.5. The plaintiffs contend that the defendant No. 2 having taken advantage of the illiteracy of the defendant- father exercised undue influence over the latter and got executed the registered sale deed jointly, in favour of their father and himself. Furthermore, the defendant No. 2 also manipulated a frivolous release deed in favour of himself as regards the share of the defendant-father in the Schedule 3 property. Subsequently, the defendant No. 2 has executed a registered gift deed dated 24.02.2010 conveying the Schedule 3 property in favour of his son - petitioner- defendant No.3.
8.6. The plaintiffs contend to be in possession of the scheduled properties, in their capacity as joint owners; the plaintiffs contend to be doing agriculture in Schedule 1 and 2 properties. They further contend that eucalyptus trees planted by the plaintiffs and their defendant-father in the Schedule 3 property had been harvested only sometime back, and that eucalyptus trees aged two years are now standing on the said property.
8.7. The plaintiffs further contend that properties acquired by the plaintiff, as described above in paragraph no. (8.3) were acquired from the nucleus of funds provided by the mother of the plaintiffs, i.e., the wife of the defendant-father, and therefore, the Schedule 3 property having been acquired from the proceeds of sale of the properties mentioned in paragraph no. (8.3.), the
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NC: 2025:KHC:9840 CRP No. 470 of 2023 Schedule 3 property is also a part of the joint family property.
8.8. The plaintiffs contend that the cause of action arose when they were apprised of the past incidence of joint ownership by defendants No. 1 and 2 of the Schedule 3 property and the effecting of release deed by the defendant-father in favour of defendant No. 2 only in 2009, and when the defendants No. 2 and 3 refused to entertain the right to partition in the shares of the schedule property, more particularly, Schedule 3 property. As such, the plaintiff instituted the subject suit for partition, and to set aside the joint registered sale deed dated 16.03.1995, release deed dated 24.10.2001, and the registered gift deed dated 24.02.2010.
9. It remains undisputed that the defendant No.1 - father was given Schedule 1 and 2 property by his father and grandfather of the plaintiffs Shri Appayana. Although the date of the same or the time at which the defendant No.1 began to live separately is not forthcoming in the plaint, a perusal of the Record of Rights, produced by the respondent-plaintiffs vide memo dated 03.12.2024 reveals that Schedule 1 and Schedule 2 properties continue to stand in the name of Shri Appayana, the father of defendant No.1 and the grandfather of respondent- plaintiffs.
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NC: 2025:KHC:9840 CRP No. 470 of 2023
10. It is pertinent to observe at this stage that the averments in the plaint do not trace the origin of the Schedule 1 and 2 properties, and make no reference to the genealogical tree, more particularly, in regard to the predecessors-in-title to the said properties. The plaintiffs merely contend that the said properties were separate properties standing in the name of the grandfather of the plaintiff-Shri Appayana i.e., the father of the defendant No.1, and make no mention of the mode of acquisition of the said properties by the deceased Shri Appayana.
11. Therefore, in light of absence of pleadings inasmuch as the origin of the Schedule 1 and 2 properties, this Court cannot presume that the said properties standing in the name of Shri Appayana were an inheritance of ancestral property, only mutated to the name of Shri Appayana in the Record of Rights upon the demise of his ancestors. It is needless to observe that the evidence produced by the parties cannot be at variance with or traverse beyond the substance of the pleadings. The principle of fair trial mandates that evidence under consideration at trial be limited to the issues that may be possibly framed on the basis of the pleadings of the parties (See, Ganga Prasad Rai v. Kedar Nath Rai, 2019 ALL 323).
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NC: 2025:KHC:9840 CRP No. 470 of 2023 11.1. Therefore, this Court, in its civil revisional jurisdiction dealing with rejection of plaint under Order 7, Rule 11 of CPC, 1908, cannot proceed on the presumption that Schedule 1 and 2 properties standing in the name of Shri Appayana are presumably, ancestral properties inherited upon the demise of ancestors, in the absence of pleadings to the said effect.
12. Furthermore, in view of the specific contention in the plaint that the Schedule 1 and 2 properties were separate properties of the grandfather of the plaintiffs - Shri Appayana, succession to the said properties shall take place strictly in accordance with the provisions of Section 8 of the Hindu Succession Act, 1956. It is settled law, enunciated in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen (1986) 3 SCC 567, that enactment of Hindu Succession Act, 1956 has put an end to the uncodified Hindu Mitakshara Law, which granted a customary coparcenary right in the properties of the grandfather to the son of a living son, and son of living son of living son, so as to constitute a joint family. The uncodified Hindu Law vested a right in such sons of living sons to claim partition per capita and separate possession of coparcenary properties. However, the enactment of the Hindu Succession Act, 1956 has ceased the successive resurgence of joint family upon subsequent births of
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NC: 2025:KHC:9840 CRP No. 470 of 2023 children and grandchildren, and any succession to the estate of an intestate shall take in the individual capacity of the successor, and not as the karta of a joint family comprising of his children and grandchildren.
13. In the case at hand, the plaintiffs are claiming a right to partition in the lands standing in the name of their late grandfather, during the lifetime of their defendant- father (i.e., living son of the late grandfather). A conjoint reading of Section 8 and Class 1 heirs enumerated in the Schedule appended to the said Act, 1956 reveals that only a son, or a son of a predeceased son, or a son of a predeceased son of a predeceased son shall be entitled to succeed to the estate of an intestate.
14. Therefore, in the instant case, when the averments in the plaint do not contain any pleading to the effect that the properties standing in the name of the grandfather of the plaintiffs in fact, are ancestral properties originally acquired by an ancestral propsitus and inherited by the grandfather of the plaintiffs (more particularly, properties standing in the name of the father of the defendant No. 1 originally belonged to the grandfather of defendant No. 1), the plaintiffs cannot claim any right in the separate properties devolved upon their defendant-father, via survivorship. However, if the plaintiffs were to contend that Schedule 1 and 2 properties originally belonged to
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NC: 2025:KHC:9840 CRP No. 470 of 2023 their great grandfather or any prior ancestor and subsequently devolved upon their grandfather, the plaintiffs could have maintained a claim for partition and separate possession of their coparcenary rights in the Schedule 1 and 2 properties.
15. In any case, even if the plaintiffs were to make specific pleading to the joint family nature of Schedule 1 and 2 properties, the two daughter-plaintiffs (plaintiffs No. 1 and 2) cannot be permitted to impugn the release deed dated 24.10.2001 effected by the defendant-father of the plaintiffs in favour of the defendant No.2, in light of the proviso to sub-section (1) of Section 6 of the Hindu Succession Act, 1956, which bars any challenge by a female coparcener to any alienation of coparcenary property made before 20.12.2004. As regards the challenge posed by the plaintiff-son, in view of the above analysis, any claim in the share of separate properties devolved on the defendant-father under Section 8 of the said Act, during the lifetime of the defendant-father, shall not be sustainable.
16. Furthermore, in light of the fact that a comprehensive reading of the plaint leads to the conclusion that the Schedule 1 and 2 properties are not joint family coparcenary estates, but rather separate properties to be devolved upon the defendant-father in his
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NC: 2025:KHC:9840 CRP No. 470 of 2023 independent capacity, as prescribed under Section 8 of the Hindu Succession Act, 1956, any properties acquired subsequently by the defendant-father from proceeds derived from cultivation of crops and other agriculture practised on Scheduled 1 and 2 Properties, shall not constitute properties acquired from jointly family nucleus, and therefore, shall remain outside the purview of a claim for partition and separate possession, if any.
17. The learned counsel for the petitioner-defendant has further placed reliance, inter alia, on Bhanwar Singh v. Puran and Ors., (2008) 3 SCC 87, wherein the Apex Court dealt with the issue of whether the appellant, who was the 'grandson of the deceased propositus', and 'son of a (living) son of the deceased propositus', and who was born in 1977 could maintain a challenge to a sale of the alleged joint family property in the year 1985, executed by the father of the appellant (son of deceased propositus) for want of legal necessity.
17.1. The Court observed that where, upon the death of the propositus in 1972, the surviving members, i.e., the son of the deceased propositus (i.e., father of the appellant-grandson) and three daughters of the deceased propositus had partitioned the coparcenary properties to the extent of ¼th share each, and the same was reflected in the revenue records of 1973-1974, the properties
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NC: 2025:KHC:9840 CRP No. 470 of 2023 standing in the name of the above surviving descendants of the deceased propositus had lost the character of ancestral property in terms of Section 8 of the Hindu Succession Act, 1956.
17.2. The Court further observed that the properties devolved onto the 'son of the deceased propositus ' (i.e., father of the appellant) and the three daughters of the deceased propositus, were so devolved upon them as per capita and not per stirpes, and that they had succeeded to the estate as tenants-in-common. Therefore, each of them was entitled to alienate their share, particularly, when different properties were allotted in their favour, respectively. Therefore, no challenge could be maintained by a son in the properties devolved on to the father, under Section 8 of the Hindu Succession Act, 1956, during the lifetime of the father.
18. The position of law on the distinct nature of succession to a coparcenary estate under Section 6 of the Hindu Succession Act, 1956 and succession to the absolute and separate estate of an intestate under Section 8 of the said Act, 1956 is settled, and any further reference to the exhaustive list of authorities relied upon by the learned counsel for the petitioner-defendants may therefore, not be necessary.
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19. However, before proceeding to pronounce the order, it is pertinent to address the authorities relied upon by the learned counsel for respondent-plaintiff.
20. The decision of the Apex Court in the case of Geetha v. Nanjundaswamy and Ors., (2023) 7 SCC 387, is an authoritative decision on the issue of rejection of plaint under Order 7, Rule 11 of CPC, 1908, wherein the Court observed that a rejection of plaint cannot be made in part, and where a case survived against certain defendants and/or suit properties, an application for rejection shall not be sustainable and the suit as a whole must then proceed to trial. The Court ruled that a rejection of plaint can be made only in whole, against all defendants and in respect of the entirety of suit schedule properties.
There is no quarrel against the said proposition.
21. In the case of John Kennedy and Anr. v. Ranjana and Ors., (2014) 15 SCC 785, the Apex court observed in a case relating to appeal against concurrent dismissals of application for rejection of plaint sought on the grounds that the plaint failed to adequately disclose particulars of the transaction effected by the defendant- karta in relation to the suit properties in favour of other defendants therein and that no relief was sought against the alleged purchasers of some part of the schedule properties, the Court opined that the issue of whether the
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NC: 2025:KHC:9840 CRP No. 470 of 2023 suit schedule property is the self acquired property of the father of the plaintiff or constituted a coparcenary character, was a matter of trial to be decided upon completion of pleadings and consideration of evidence. The same cannot be resolved at the stage of an application made under Order 7, Rule 11 of CPC, 1908.
21.1. The above case-law, however, is inapplicable to the facts of the case at hand, in light of the fact that the plaint averments refer to the purported joint family property viz. Schedule 1 and 2 property, as separate property belonging to the grandfather of the plaintiffs. Therefore, there cannot lie a claim for partition by the plaintiffs in the separate property of a grandfather devolved through survivorship on to their father, during the lifetime of the latter.
22. In the case of Radha Bai v. Ram Narayan and Ors., AIR Online 2019 SC 1521, the Apex Court dealt with a suit for partition and separate possession instituted by the plaintiff - 'great granddaughter of the original propositus' in relation to the lands already partitioned in the year 1967, between her grandfather and his brother i.e., 'sons of the original propositus'.
22.1. Simply put, the plaintiff therein, in addition to a claim for a share by partition, had challenged a deed of gift executed by her grandfather in favour of a grandson,
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NC: 2025:KHC:9840 CRP No. 470 of 2023 in relation to certain lands fallen to the share of the grandfather of the plaintiff in the said partition.
22.2. The Court observed therein that where the properties belonging to the original propositus (great- grandfather of the plaintiff) had already been partitioned between his sons (grandfather of the plaintiff and his brother) under Section 6 of the Hindu Succession Act, 1956, admittedly, subsequent to the birth of the 'predeceased father of the plaintiff', the plaintiff (great- granddaughter of the original propositus) could not lay a claim over the lands fallen to share of her grandfather (son of the original propositus), on account of the fact that the said partition effected in the year 1967 had terminated the undivided joint family character of the suit lands, and that the respective properties fallen to the share of the sons of the original propositus had acquired a character of absolute and separate property.
22.3. Therefore, in light of the said partition, there operated no restrictions on the grandfather of the plaintiff to alienate or dispose of any portion of property fallen to his share in the partition executed in 1967. Furthermore, even the father of the plaintiff could neither maintain a challenge to such alienations nor claim a coparcenary right, in the now separate property of the grandfather. Therefore, where the deceased father could not have claimed a right in the separate properties standing in the
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NC: 2025:KHC:9840 CRP No. 470 of 2023 name of the grandfather of the plaintiff, the plaintiff- daughter could not claim a share in the same, higher than that of her predeceased father.
22.4. Hence, the Court opined that any devolution of a separate property, upon enactment of the Hindu Succession Act, 1956, shall take place by survivorship under Section 8 of the said Act, in the individual capacity of the successor, and not in the representative capacity as a karta of the HUF property vis-a-vis the son(s) of the successor.
22.5. The above case-law is squarely applicable to the facts at hand, inasmuch as the plaintiffs in the instant case are seeking to maintain a coparcenary right in the Schedule 1 and 2 property of the defendant-father, which devolved upon the latter under Section 8 of the Hindu Succession Act, 1956. This Court is estopped from concluding to the contrary in light of the plaint averments to the effect that the Schedule 1 and 2 properties were separate properties belonging to the grandfather of the plaintiffs, and were given to the father of the plaintiffs.
22.6. Hence, in light of the fact that the scheme of the said Act does not allow a son or a daughter of living son to lay a claim over the properties devolved over the living son under Section 8 of the Act, the suit of the plaintiffs to the same effect cannot be sustained.
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23. In the case of Jayashree Jayanth v. N Krishnaswamy, in RFA No. 1226/2016 : DD 22.10.2024, the Division Bench of this Court made the following observations, in relation to Section 6 and Section 8 of the Hindu Succession Act, 1956:
i. It is not accurate to state that devolution under Section 6 of the said Act takes place only by testamentary or intestate succession and devolution by survivorship does not take place at all, in view of the fact that the legislative intent behind the 2005 Amendment to Section 6 of the Act was to only confer the coparcenary right on the daughter, including one to claim partition even during the lifetime of her father. This Court opined, "if partition is sought after the death of father, again the devolution of the property among all the coparceners takes place according to rule of survivorship and only the interest of the deceased Hindu will devolve by testamentary or intestate succession. Here again the fiction of notional partition can be conceived to determine the share of the deceased which has to be inherited by way of succession by his heirs who are entitled to share in accordance with section 8".
ii. Reference was made to the case of Chander Sen (supra), wherein the partition had taken place between the father and son (Chander Sen) on 10.10.1961 and the joint family and the business had been disrupted, and the father had died on 17.07.1965 leaving behind only
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NC: 2025:KHC:9840 CRP No. 470 of 2023 Chander Sen and his three sons, and the credit balance of a sum in the account of the father had devolved on the son i.e. Chander Sen in accordance with Section 8 of the Hindu Succession Act, 1956.
The Division Bench opined that only a son could succeed to the estate of the deceased male Hindu, and that presence of sons of a living son did not have the effect of succession of Chander Sen to the said sum to make it a joint family property. The same remained a separate property in light of the fact that son of a living son is not enumerated as a Class 1 heir, as enumerated in the Schedule to the said Act, and that only a son of a predeceased son, or a son predeceased son of the predeceased son, would qualify for succession to any estate of a deceased male Hindu, under Section 8 of the said Act. However, prior to the advent of the Hindu Succession Act of 1956, the uncodified Hindu law would give succession by Chander Sen to the said sum, in the presence of a son of a living son, the effect of creating a joint family property. Hence, this Court observed that any interpretation to the effect that even devolution by survivorship of a coparcenary property (inheritance by the son via survivorship of the undivided share of the deceased father) is governed by Section 8 of said Act, 1956 - which deals only with self acquired or separate property of a male Hindu, would be inaccurate.
However, this Court clarified that whenever a notional partition was effected to determine the share of
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NC: 2025:KHC:9840 CRP No. 470 of 2023 the deceased male Hindu, since it becomes the separate property of the deceased, the devolution of interest shall take place under Section 8 of the said Act.
iii. Therefore, devolution of Mithakshara coparcenary property takes place by survivorship and Section 8 is applicable while distributing the notional share of the deceased male Hindu.
23.1. There is no quarrel with the ratios enunciated in the above case-law. The above case law reiterates the statutory novelty that a plaintiff - son/daughter of a living son cannot maintain a claim over the property devolved on to the living son, which originally was a separate property belonging to the grandfather of the plaintiff.
24. In view of the preceding analysis, the suit of the plaintiffs for partition and separate possession, over a property devolved on to their defendant-father, which originally was a separate property belonging to the grandfather of the plaintiff, cannot be maintained, in the lifetime of the defendant father. Similarly, any challenge by the plaintiffs to the alienation or disposition of such property or any part thereof, by their defendant-father, cannot be sustained, in light of the express omission of son/daughter of a (living) son from the relatives
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NC: 2025:KHC:9840 CRP No. 470 of 2023 enumerated in Class 1 heirs, contained in the Schedule appended to the Hindu Succession Act, 1956.
25. Accordingly, the instant civil revision petition is allowed, and the plaint in O.S. No. No. 355/2017 stands rejected under Order 7, Rule 11 (a) and (d) of CPC, 1908.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM List No.: 1 Sl No.: 144